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Wednesday, February 28, 2007

The Supreme Court of Canada leaves us in a quandary - Charkaoui v. Canada

The issues the Supreme Court had to decide in Charkaoui and the two appeals heard with it were pretty simple.

Is
it just that foreigners living in Canada can be arrested without being
given the full reasons for their arrest? Should they have to wait
months or more before they can ask a judge to release them? If the
answer to either of these questions is no, can the breach of the
foreigners' rights be justified for security reasons? The issues have
been widely canvassed in the media and no consensus has emerged. The
Supreme Court reached a perfect consensus unanimously saying: No. No.
No. But it did not keep it simple

Adil Charkaoui, a permanent
resident, what used to be called a landed immigrant, and Hassan Almrei
and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002
respectively, under provisions of the Immigration and Refugee Protection Act
that allow the Minister of Immigration or the Minister of Public
Safety to issue a certificate declaring someone not a citizen of Canada
"inadmissible". The certificate must be reviewed by a judge but the
judge may determine that the certificate is reasonable on the basis of
information or evidence heard in the absence of its subject or his
lawyer, if persuaded by the minister that its disclosure would injure
national security or anyone's safety.

The certificate has the
immediate effect of an arrest warrant and after it is passed by a judge
becomes an order for removal of the subject from the country. A review
of the detention of a permanent resident must be commenced within 48
hours of an arrest. Others such as the refugees Harkat and Almrei must
wait 120 days before they can apply to have their detention reviewed.

Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.

The Court first considered Section 7 of the Charter:

7.
Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.

It
was not difficult to decide that the appellants had been deprived of
their liberty. They had been locked up. That was enough to be getting
on with. But Chief Justice McLachlin writing for the whole Court made
heavy going of Section 7 by also considering the vague, catch all
phrase "security of the person". Being called a terrorist may not be
nice if you are innocent and the risk of return to the somewhat
Hobbesian lands whence Charkaoui and the others came may be worse but
the first is curable and the second hypothetical. The unnecessary
disquisition on "security of the person" signals the Court's readiness
to entertain strained and imaginative arguments in other cases.Under Section 7 of the Charter
you can be locked up "in accordance with the principles of fundamental
justice". The court considered whether national security could affect
the requirements of "fundamental justice". But not for long. The court
has generally shown itself keen to find breaches of the Charter.
Once it has done that it can consider whether the breach is a
"reasonable limit" under Section 1, looking to whatever it pleases as
"evidence" and drawing a "reasonable limit" wherever it sees fit.

Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act,
McLachlin then blathered on about "fundamental justice" for twenty
pages, worrying for seven pages whether the reviewing judges can be
perceived as independent and impartial before roundly concluding that
they can, yanking in a completely irrelevant comment on the Arar affair
and allowing that, after all, "societal concerns [including national
security] formed part of the relevant context for determining the scope
of the applicable principles of fundamental justice", before finally
reaching the predictable conclusion that there was a breach of Section
7.

Consideration then of whether the breach could be justified
came down to a decision that the breach was not a "minimal impairment"
of Section 7 rights, that the government could do better, by providing
for a special counsel who would have security clearance and see all the
evidence but not disclose it to the detainee or take instructions from
him. Such counsel used to be used by Canada's Security Intelligence
Review Committee and are used in the United Kingdom in some immigration
appeals. Perhaps they will be helpful. But it is not something that
follows necessarily from the language of the Charter.

What follows necessarily from the language of the Charter
is that the Court is free to second guess Parliament and impose its
will on it. That is what law professors with solemn facetiousness call a
"dialogue between the Court and Parliament". It is no fun having a
power if you do not use it and use it the Supreme Court of Canada will.

The court briskly considered Section 9 and subsection 10(c) of the Charter:

9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas
corpus and to be released if the detention is not lawful.

holding
that security was a "rational foundation" for detention but that the
ban on a review of the detention for foreign nationals such as Harkat
and Almrei breached Section 9 and subsection 10(c) together. They like
Charkaoui must have continuing opportunities for review of their
detention and any conditions of release.

Finally the court considered Section 12 of the Charter:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

which
the court eyes as a blanket authority to let the Court decide how to
make the punishment fit the crime. After ten pages of hemming and
hahing the court decided that Almrei's indefinite detention was not
"cruel and unusual treatment" while saying:

...this
does not preclude the possibility of a judge concluding at a certain
point that a particular detention constitutes cruel and unusual
treatment or is inconsistent with the principles of fundamental
justice, and therefore infringes the Charter...

just to keep us on our toes.

Reactions
to the decision were far too excited. The judgment will not change
much. Almrei will remain in detention indefinitely. Charkaoui and
Harkat will remain on conditional release indefinitely. Security
certificates can still be issued and foreigners can still be arrested
without knowing the grounds for their arrest. Parliament will try to
amend the Immigration and Refugee Protection Act
to satisfy the Court. There will be more litigation and controversy.
Whatever Parliament does will be challenged and it will be years before
we know whether the Court is satisfied or whether it may change its
mind in one direction or another.

The excited reaction was
fuelled by the Court's pompous language and elaborate treatment of
simple issues. McLachlin's reasons are full of invocations of liberty,
justice, equality and so on that contribute nothing to the decision but
signal the solemnity, importance and almost sacredness of the Court.
Issues are dealt with briefly or at length with no rhyme or reason and
whether or not they are necessary to deciding the appeals. Whether
issues are dealt with at length or briefly, whether they are necessary
to the decision or not, the reasons are studiously vague and qualified.
Context, used thirty-six times, is all. The purpose of reasons for
judgment is to clarify the law. If the Court were doing its work
properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.

The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter.
The drafters and Parliament must have supposed that it would withstand
Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter
licences it to do what it likes. We cannot know what it may like until
we ask it. And its power would atrophy if not used. So it was
predictable that the Court would do something, but predictable also
that it would do nothing radical. The judges are not a bunch of
radicals, whatever Stephen Harper may think. They are just nine fairly
ordinary lawyers enjoying extraordinary eminence and power.

Most
laws are effective because people know them and follow them.
Occasionally the courts are drawn in to enforce them on the
recalcitrant or sort out confusions but, while the authority of the
courts is fundamental to the authority of the law, the courts remain
largely in the background. The Charter
is different. Its effect and reach result precisely from our not
knowing what the courts may make of it, the readiness of people to find
whatever they like in it, and the readiness of the Supreme Court to
give it to them.

There is unusually little in the reasons on the
facts and the proceedings that brought the appeals before the Court.
For a full understanding of the appeals it is necessary to refer to
some of the 46 reported Federal Court decisions running to about a
thousand pages of reasons that the three appellants have generated.

The
Court heard 15 intervenors; Amnesty International, Canadian Arab
Federation etc., etc.. The practice of welcoming intervenors presents
the Court as a public forum where all have their say. It is a false
picture. In the end only the Court has its say and the intervenors did
not represent all opinions but basically lined up with the appellants.
The most impertinent intervenor was "University of Toronto, Faculty of
Law — International Human Rights Clinic and Human Rights Watch", a
clique of specially unctuous law professors, condescending to offer
their learning to the Court knowing that they had already infested it
with their annointed students serving as judges' clerks.

The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act
is simply to get dangerous people out of the country but Charkaoui,
Almrei and Harkat can all argue that they risk torture if sent back
where they came from. The Minister can issue an opinion that the danger
to the security of Canada justifies removal to a country where there is
a risk of torture but in the case of Almrei such opinions have
repeatedly been quashed by the Federal Court. We are left in a
quandary. The Supreme Court has no better idea how to get out of it
than the government does.